Petition for a Writ of Certiorari — Fibreboard Paper Products Corp. v. Borel

MICHAT! nOnhKk 38 CLERK

Ix THe } Reads REDEEMER

Supreme Court of the United States

Ocroper Term, 1974

Hiprenoarp Paper Propvers Corporatio’. ET AL,

Petitioners,

Vv.

CLARENCE Boren,

sneenree

PETITION FOR A W RIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Georcke A. WELLER

P.O. Box 350

Beaumont, Texas 77704

Joun G. Tucker

Beaumont Savings Building

Beaumont, Texas 77791

Jounx Pike Powers 1V

San Jacinto Building

Beaumont, Texas 77701

Gorpon R. Pare

Beaumont Savings Building

Beaumont, Texas 77701

Greorce BE. Duncan

Petroleum Building

Beaumont, Texas 77701

W. N. Arnoxp, Jr.

Bank of the Southwest

Building

Houston, Texas 77002

Counsel for Petitioners

FIDELITY PRINTING COMPANY, MOUSTON

INDEX

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There are 28 similar cases pending in other Courts, ete.

PRORGONG TOP SEP ARATR TING WV OIE ivescssscsscsscessscccsvssdasecdscssccassessccees

1.

The decision below that Borel did not have notice of

“asbestosis” conflicts with decisions of Texas Courts,

The Fifth Circuit and Supreme Court of the United

States holding that Borel had notice as a matter

of law of the statutes of Texas 0.0. jdaceasnces

2. The failure to submit an interrogatory or form of

verdict whereby the jury could pass on the defense

of assumption of risk deprived defendants of the

Er RN NIN ON no secehnranh cbiensadlinibaiochvenmbassenions

3. The case was submitted on special interrogatories and

not on a general verdict, therefor the opinion fails

to follow Rule 49a and is in conflict with decisions of

the First Cireuit and the Fourth Circuit ...000.......0..0..

4. The decision below is in conflict with the Tenth Cir-

cuit and cases cited in failing to instruct on the

defense of balancing of the product's utility against

SN SI 1, recat anh sacs oonthLapleircinis ested sa nade au Adaduovke coax esichcave

5. The decision below applying the rule of 402A retro-

active to 1937 is in conflict with opinions of the

Supreme Court of Texas adopting strict liability and

is in violation of the Constitution of the State of

NI Sask cil its ara tilenh caaspnmnunenioe oegeictanierhp kasnaninbokesenvéasbenseneiciin

INI iskinch cacti habkaihictetacsmecnnbssies iedinshinbias cosisicaonebiai shaboslevatsanain

PIII secs sehetstiepssaesnseeiascsttcastounbtinis igihedvineladiodbibesnsasaue icSevioussasuatsignonsens

Opinion and Judgment of Court

Opinion and Judgment of Court of Appeais on Rehearing

Copy of Article 8306, Sec. 20(a), and Article 8306, Sec.

26, Revised Civil Statutes of Texas

POOP ener eee eeesereesssseses

Pace

10

10

14

14

18

Opinion Ct. Civ. App. Tex.. Kaseh vo Anton, 81 S.W 2d

WoT, 1100

Copy of The Asbestos Worker, October, 156 0.

Copy of The Asbestos Worker, July, 1957

Copy of The Asbestos Worker, November, 1961

Copy of The Asbestos Worker, April, 1957

Affidavit re other cases involving cliims for damages re-

sulting from asbestos exposure

List of other cases pending

Opinion, Sup. Ct. Tex... Pittsburg Coca-Cola Bottling

Works v. Ponder (1969), 443 S.Wod 346. 548

Opinion, Sup. Ct. Tex.. Howle vo Camp Amon Car‘er

(Tex. 1971), 470 SW.2d 629

Opinion, Sup. Ct. Tex.. MeKisson vy. Sales Affiliates, Ine.

(FOR. S001). S00 Oe eI cain

CITATIONS

Statutes

Revised Civil Statutes of Texas. Workmen's Compensation

Statute of Texas (1947), Article 8306, Sections 200n) and

26(a)

SRER CAPA OFED ORD SERS SSDOReNE ELOS FESO SEER ADEA EDIT DERTsesdsebNORTAAD EDEN COsbdERE REDS beCbebae

Cases

Abernathy v. Sisters of St. Mary's, 447 S.W.2d 599 (Mo.

169)

CRCRUREAOSS?SRREEEDD >A OR TEENS DORNER DS SD EDCCEEAS ENT Eb DDTS PEED Abo s¥erebers Gale coRudécesnce

Becekert v. Holley, 104 F.2d 1010, cert, denied, 60 St. Ct. S16

Brown v. Howard, 289 S.W.2d 752) (Tex. Civ. App. San

Antonio, 1955, writ ref'd NRE. |

Commissioner vy. Estate of Boseh, 387 ULS. 456, 465, 87S. Ct.

1776, 1752-3. 1s L. Ed. 2d 886. 804 + 1067)

Consolidated Casnalty Insurance Company y. Perkins, Su-

preme Court of Texas, 1955, 279 S.W.2d 299, 302 000...

Cruz v. Ansil Chemical Co. 399 8. Wo2d Eo Tex. Civ. App.

Corpus Christi, 1966, writ refd NORE.)

Darling v. Charleston Community Memorial Hospital, 33° U1.

2d 326. 211 N.E.2d 253 (1965), cert. denied 383 U.S. 946,

86 5. Ct. 1204, 16 L. Ed. 2d 209 (1966) 0.......ccccccceocess..-........

Falls County v. Mires. Ct. Civ. App. Tex. 1949, 218 S.W 2d

PE ENS WOR. enaroribciaies lia icacicica ona ae Ear

A-s]

A-111

A-117

2,4

11,12

Holytz v. City of Milwaukee. 17 Wis. 2d 26. 115 NAV.2d 61s

VIGZ) acerccencessen pabsicks het ons J vagnsabuabusaden sve slbcanaadeasuknnsevenrtsen a

HHouston and TLC OR. Company v. Johnson, Tex. Coma. App.

PE BE SG AE YS ciccceccceotnes onnanscnnscnnspapntabenntnctnerenevensanatonte?

Howle vy. Camp Amon Carter Tex 174

Py GE WE GLY avcecinsescsots xn sntencainns vnezertuieepancepentn eanstes ea" 3, 21, 22

Indemnity Tnsurance Company ef North America vo Wil-

liams, Ct. Civ. App. Ts4. 69 SW wd DTG, DZS 2... ceeceeeeee eee 11, 2

Kasch v. Anton, Tex. Ct. Civ. App. 135, ST SAW. 1097,

OI essa ene enmnsenneenaie nro eamnemarenaie SMR Te iz

MeGrath v. Wallace Murray Corporation, US. CT. App. 10th

Cir. 1974. CLC. Products Liability Reports, Paze 12,825;

Pavey. TIGY (VER) snsvevesnnnnneccsenenensosnsneas sonvennnennscceosonarvonsee ees Is

MeKisson v. Sales Affiliates. Ine. | 1967) 416 S.W.2d 787 ...... Pees |

Meacham v. Holley, 103 F.2d 967 «0... ececseeeeecseseecnsentenneenennssenees 12

Myers v. Drozda, 1-0 Neb. 183. TAD NW. 2d S92 (Tob) 22

Palmiero v. Spada Distributing Co. oth Cir, Wd) 217 F.2d

Feb eer base neceroepuaneemane cneasdadsn ob seuadaarinnentenenshentte-0 COMA Ee en 2

Pittsburg Coca-Cola Bottling Works vo Ponder (Tex. 1969

GAS SW 2d FAG, BAS oon. cnce cs ccneesensecsonssnccrsconsnennncenanencnenascenrecors 3, 20

Roginsky v. Richardson-Merrill, Ine. 378 F.2d 8352. sol

(Dard. Cir, WIC) cscsovocnessccaraesereseronerenrsnsasanssenarosnnersseasninesunessnscet? 23

Seott v. Isbrandsten Company (4th Cir, 1964), 327 F 20

Ee I oe inc cecoepansbonmsatsnrsnvehvlesnesonesresteoensnctannnpenasicencenevianer’ Wi

Spanel v. Moundsview School District. 264 Minn. 27. 115

NW.2d 795 (VIGZ) ..cecccsvocsssceonserersocssscsceserssnorasancvararssseorareesers 2e

Stafferd Manufacturing Company v. Wichita School Supply

Company, et al (1930), 25 S.W 2d G95, COT eecececseereeecneeeses 11

Theon v. Hatton. 287 Minn. 545, 177 N.W.2d 815 (1970) ...... 22

United States v. International Minerals and Chemical Corpo-

ration, 402 U.S. 55s, 20 L. Ed. 2d 178, 91S. Ct. 1697 ........ 11

Watkins vy. Southerest Baptist Chureh, 309 S.W.2d 530, 535 21, 22

Miscellaneous

Constitution of the State of Texas, Article 1, Section 16 20... 3, 23

Constitution of the United States, Article I. Para. 9 ............ 2

Federal Rules of Civil Procedure, Rule a Beene 14,15

Restatement of Torts 2d, Sh idetk EPR 5. posicsorannnniecavnccendbonnsone 19

Tex. Jur. 2d Vol 62. Para. 107, Page WINS asses sasicaserosnivers 10

Go

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Ix THe

Supreme Court of the lnited States

Ocroser TERM, 1974

Py Pepa aarseee

iQ. cannes

Finreroarp Parer Propucts Corporation , ET AL,

Petitioners.

Vv.

CLARENCE BoreL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners, Fiberboard Corporation, J ohns-Manville

Products Corporation, Armstrong Cork Company, Philip

Carey Corporation, Ruberoid Company, and Pittsburgh

Corning Corporation, respectfully pray for a Writ of

Certiorari issue to review the Judgment and Opinion of

United States Court of Appeals for the Fifth Circuit

entered in this proceeding on September 10, 1973, and the

Opinion on Motion for Rehearing entered on May 13, 1974.

OPINION BELOW

The original Opinion of the Court of Appeals is reported

in 493 F.2d 1076, and the Opinion on Motion for Rehearing

En Bane, not yet reported, appears in the Appendix hereto.

No Opinion was rendered by the District Court for the

Eastern District of Texas.

JURISDICTION

The Judgment of the Court of Appeals for the Fifth

Cireuit Was entered on September 10, 1972. 4 timely Motion

for Rehearing En Bane was denied on May 13, 1974, with a

written Opinion, and this Pevition for Certiorari was filed

Within $0 days of that date. This Court's jurisdiction is

invoked under 28 ULS.CLA. ¢ 125401).

QUESTIONS PRESENTED

1. Whether Borel, an asbestos insulator, a resident of

the State of Texas, and his employer must take judicial

notice of the Workmen’s Compensation Statute of Texas

(1947). Article 8306, Section 20(n), Revised Civil Statutes

of Texas, specifying “ashestosis” as an occupational dis-

ease, and Article S306, Section 26(a) defining “asbestosis”

as the characteristic condition of the lungs caused by the

inhalation of asbestos, and whether such judicial notice,

plus the undisputed knowledge of Borel that he Was work-

ing with a preduct containing some asbestos and that the

dust was causing him some harm, is sufficient as a matter of

law to show notice and knowledge of Borel of the danger of

“asbestosis” from exposure to asbestos dust from Peti-

tioners’ product.

2. Whether the failure to submit an interrogatory or a

form of verdict whereby the jury conld pass upon the de-

fendants’ defense of “assumption of risk” deprived the

defendants of their right to a trial by jury as guaranteed

hy the Constitution of the United States.

*. Defendants contend that this ease was submitted on

special interrogatories and not on a combination of special

interrogatories and a general verdict. Therefore. the opin-

ion fails to follow mile 49(a) that ne finding may be made

by the court on an omitted fact issue. The opinion is there-

o

fore in contlict with the decision ef other opinions of the

Pitth Cireuit and an opinion of the Fourth Cireuit Court

of Appeals.

$. Whether the trial court erred in refusing to instruct

the jury that liability could not be imposed if the utility of

the product outweighed the danger involved, and thereby

deprived defendants of a trial by jury on this issue. (App.

p. ISS —- Request No. 15).

-

>. The ex post facto application of strict liability in

tort under Section 4024, Restatement of Torts, 2nd. Ed..

(adopted in 1965), and adepted by Texas Court in 1967,

to oveupational exposures to products containing asbestos

by Borel commencing in 1937. is in conflict with opinions of

the Supreme Court of Texas in MeN isson v. Sales Affiliates,

Tne. (1967) 416 S.W.2d 737. and Hlowle V. Camp Awan

Carter (Tex. 1971) 470 S.W.2d 629, and Pittsburg Coca-Cola

Bottling Works v. Ponder, 445 S.W.2d 546, 548 (Tex. 1969),

and is in violation of the Constitution of the State of Texas,

Article I, Section 16.

“See, 16. No bill of attainder, ex post facto law,

retroactive law, or any law impairing the obligation of

contracts, shall be made.” Vernon's Texas Constitution,

Volume 1, Page 371.

STATUTORY PROVISIONS INVOLVED

Article 8306, Sec. 20, Revised Civil Statutes of Texas.

“Injury” and “personal injury” defined; occupational dis-

eases, What are:

“Sec, 20, Whenever the term ‘injury’ or ‘personal

injury’ are used in the Workmen's Compensation Law

of this State, such terms shall be construed to mean

damage or harm to the physical struetare of the body

and such diseases or infection as naturally result

a

therefrom. Unless from the content. the meanine is

clearly to the contrary, such terms sball also be con-

strued to mean and inelude occupational diseases, as

hereinafter defined. The following diseases only shall

he deemed to be ocenpational diseases :

“(n} Asbestosis.”

Article 8306, See. 26, Revised Civil Statutes of Texas.

Silicosis and Asbestosis,

“See. 26(a) Whenever used in this soction ‘asbes-

tosis’ shall mean the characteristic fibrotic condition of

the Iungs caused by the inhalation of asbestos dust.”

Acts 1947, 50th Leg., Page 176, Chap. 113, Para. 2, as

|

amended Acts 54th Ley, Page 662, Chap. 233, Para. 1.

STATEMENT OF THE CASE

This is a products liability suit for damages instituted

by Berel, an industrial insulator, in which his surviving

wife was substituted as plaintiff, which went to trial against

SIX manufacturers of insulation products containing some

asbestos. Borel and his widow claimed that Borel developed

the occupational disease of asbestosis during his 33 years

as an insulator, beginning in 1926 and ending January 18,

1969, The Petitioners are manufacturers of the major por-

tion of insulation produets containing asbestos in the

United States, and Borel claimed he was exposed to each

defendants’ product. Trial was to a Jury, resulting in a

verdict on “striet liability.’ The Fifth Circuit affirmed

judgment for plaintiff, and overruled Petitioners? Motion

for Rehearing.

Asbestos containing insulation was the only produet

available for high temperature insulation of piping and

valves in ships, chemieal plants, oil refineries, ete., in

World War IT up to 1971.

In 1947, the State of Texas amended the Workmen's

Compensation Law, specifically naming the disease of

i»)

Sasbestosis” as an occupational disease and defining asbes-

tosis as the characteristic condition of the lungs caused by

the inhalation of asbestos.

Each of the six remaining defendants have been held

liable beeause of ‘failure to vive adequate notice of the

danger of the oceupational disease of asbestosis from ex-

posure to their various products which contained some

asbestos, such exposures being to various products over

the period of 33 years up through 1969.

Borel had lung congestion for a period of five to ten

vears preceding his serious iIness. A doctor advised him

in 1964 upon X-ray exmnination that his lungs were cloudy

and this was due to his occupation, (R. 1460). He had

experienced shortness of breath from time to time, and in

1964 his doctor advised him to avoid breathing the ashestos

dust. Borel knew he was working with asbestos products;

he knew the dust was bad and had discussed the danger

in such dust in union meetings (R. 1476-77); and he was

aware of the dust problem from the time he began working

as an insulator in 1986. Borel denied he was ever made

aware of a specific risk of asbestosis or that he knew sshes-

tosis was an occupational disease. 3orel: “YT knew | was

working with insulation. Q. Did you know it contained

asbestos, A Yes, sir, but I didn’t know what asbestos Was.”

It takes a worker 20 te 25 years ata minimum to develop

asbestosis, as it has a latency period of 20 years or longer.

(R. 985).

There is no question but that the manvfacturers knew

of the disease of asbestosis from exposures in asbestos

textile factories and factories where one hundred pereeni

concentrations of asbestos wer processed, but the exposures

of the industrial insulation worker presented an entirely

different situation which was not comparable.

6

The tirst large scale survey of insulation workers was

undertaken in the United States by Fleischer-Drinker, et

al, in 1945.' The authors examined insulation workers in

eastern Navy shipyards and concluded that “asbestos cover-

ing of naval vessels is a relatively safe operation.” In

1947, the American Conference of Governmental Industria!

Hygienists, a quasi-ofticial body responsible for tnaking

recommendations concerning industrial exposres to dust

from various products, recommended that the threshold

limit value should he five million parts per cubie foot of

ur’ The Conference later determined in 1968 that. the

threshold limit value should be reduced to two million.

Research by Fleischer and Drinker in naval shipyards

In 1846 (R. 1097), and Marr in naval shipyards in 1964

(R. 1099), revealed that dust exposure to insulation work-

ers in naval ship construction Was under the threshold

limit value of five million and this was confirmed by the

research of Balzer and Cooper (1965-1968), published in

1968 (R. 1095-1096-1097 ), researching working conditions

of insulation workers on the Pacific Coast. Fleischer and

Drinker, in 1946, and Marr. in 1964, published their eon-

1 Fleischer, Viles. Gade and Drinker, A Health Survey of Pipe-

Covering Operatious in Constructing Naval Vessels, 28 J. Indust.

Hyy. 9-16.

tr

See Documentation of the Threshold Limit Values for Substances

in Workroom Air, A.CLG.LHL, (Sed 1971). The A.C.G.L 1. has

described the threshold limit values as “conditions under whieh

it is believed that nearly all workers may be repeatedly exposed,

day after day, without adverse effect. The Values usted refer to

time-weighted average concentrations for a normal workday. The

amount by which these figures may be exceeded for short periods

Without injury to health depends upon a number of factors such

as the nature of the contaminant, Whether very high concentva-

tions even for short periods produce acute poisoning, whether

the effeets are enmulative, the frequency with which high vor-

centrations occur, and the duration of such periods.” See Thres.

hold Limit Values for 1961, A.C.G.LUL. (1961),

7

clusion that it was reasonably safe for asbestos workers

to work in naval shipyards.

In testifving before a House Committee, Dr. irving J.

Selikolf, of New York City’s Mount Sinai Hospital, one

of the leading medical researchers, stated in 1968S that the

duty and responsibility is primarily that of the vovern-

ment and the scientists Mm cooperation to solve the problem.

He amade it clear that it wis an unhappy reflection on the

henlth authorities — government, publie health authorities.

the medieal profession — that at this time, in the United

States in the 1960's, 70 of all deaths among insulation

workers are due to a completely preventable cause, prul-

monary asbestosis, He goes on to say and this was at

a time when there was ne thoucht of imposing lability

on manufacturers of asbestos products and therefore with

out any reason for bias — that “it is evident that they bad

every right to look to their government and public health

authorities and to the physicians and the scientists.”

Such information as we How hare,” he qoes Oo fo say.

“are medsHres to prove workiig cond tious including the

following: (1) Lucproved working practices: (2) Avail-

ability of pi prert ed washs or respirators; (+5) Appropriate

exhaust: (4) Appropriate health examinations and the

vacuuming of clothes before woing home; and (>) The sab-

stitution of less dusty materials when the job to be done

permits it. In view ef the variety of things that can hie

done to lessen the environmental hazards, it is Inaccurate

to blame any segment of the industry. No one really kiows

where the responsibility lies or what is economically or

sejentifically feasible, Does it belone with the materials

maker? The individual employer: The regional employers”

association? The National Employers’ Association - The

national materials manufacturers association! The local

8

unions? The international union? Only the Peblic Health

Service can provide the long time surveillance necessary

for the detection of effeets with a long latent period.” See

Sclikoff Statement Before House Committee, supra.’

It was not until Dr. Selikoff published his articles bewin-

ning in 1964 regarding the occurrence of asbestosis amony

insulation workers in the United States that scientists and

researchers beeame aware that exposure to dust contains

asbestos particles which were within the recognised thy

hold limit was probably producing injury to the insula

worker. Working conditions for insulation workers

greatly. Tearing out old insulation in close quarters in

ships and buildings produces greater exposure to asbestos

dust. There is greater exposure in dust concentration i)

shops and there is less exposure when pipe insulation or

block insulation is applied in open areas.

The Fifth Cireuit in its original Opinion states: “This

product liability case involves the scope of an asbestos

manufacturer’s duty to warn industrial insulation workers

of the dangers associated with the use of asbestos.” The

jury found that the defendants breached a warranty by

failing to warn Borel of the danger to which he was exposed

in a product containing some asbestos. The Court further

holds that the defendants’ product was unreasonably dan-

gerous because of the failure to give adequate warning of

the known or knowable dangers involved. (Opinion, p. 17).

The Fifth Circuit further said: “In reaching our decision

in the case at bar, we recognize that the question of the ap-

* Hearings Before the Select Subcommittee on Labor of the Com-

mittee on Education and Labor, House of Representatives,

Ninetieth Congress, Second Session, on H. R, 14816, Occupa-

tional Safety and Health Act, March 7, 19638, Pages 349

through 369.

9

plicability of Secon 402A of the Restatement to cases in-

volving ‘occupational diseases’ is one of first impression.

Sut though the application is novel, the underlying prinei-

ple is ancient. Under the law of torts, a person has long been

liable for the foreseeable harm eaused by his own negli-

venee.” (Opinion, p. 4).

The plaintiff here did not recover upon the theory of

negligence because of a finding of contributory negligence.

(R. 1804), Plaintiff's recovery was based on “strict liabil-

“> Ba

The Court further held that by 1964-66, Borel’s illness

was irreversible, but it nevertheless held Fibreboard, Arm-

strong Cork Co. and Pittsburgh Corning liable on the basis

of exposures subsequent to such dates.

The trial court rendered judgment jointly and severally

against the six manuzacturers remaining on the theory of

“strict Liability” under Sec. 402A, Restatement of Torts,

and breach of an implied warranty of fitness because the

products were unreasonably dangerous because they con-

tnined some asbestos, and defendant failed to warn of the

dangers of asbestosis. The Court of Appeals affirmed on

the same theory, holding that although as found by the

jury, Borel knew he was working With ashestos contaiming

products, that it was eausing him harm, nevertheless, there

was a duty to warn of the potential dangers of asbestosis.

On rehearing, the Court in an eleven page Opinion, over-

ruled the Motion for Rehearing En Bane on May 15, 1974.

(App. p- 90).

IMPORTANCE OF THE QUESTION

The consideration of this case by the Supreme Court is

important in that there are presently nine (9) similar cases

in the United States District Court for the Eastern District

or

10

of Texas, Beaumont Division; one (1) pending in the United

States District Court for the Southern District of Texas,

Houston Division: and nineteen (19) casce in various other

United States District Courts in Colorado, Missouri, ete.

(App. p. 94). There are at least 20,000 or more industrial

workers who have been exposed to asbestos dust and who

are potential claimants.

REASONS FOR GRANTING THE WRIT

1.. The decision below holding that Borel did not have

notice of the disease and danger of asbestosis is in conflict

with the decisions of the Texas Supreme Court and inter-

mediate Texas courts, the Fifth Circuit and other Circuits,

and the holding of the Supreme Court of the United States,

which in effect hold that Borel and his employers had notice

as a matter of law of the disease and danger of asbestosis

because Borel and his employers are conclusively presumed

to know that the provisions of the Workmen’s Compensa-

tion Statute of Texas, 8063, Sec. 20(n) and Sec. 26(a), speci-

fying “asbestosis” as an occupational disease and defining

“asbestosis” as: “xxx the characteristic fibrotic condition of

the lungs caused by the inhalation of asbestos dust.”

In Texas law, it is recognized that ordinarily the diseases

named as occupational diseases are those acquired in the

usual and ordinary course of an employment and those that

from common exrpireice are recognized to be incidental to

a particular employment, xxx Tex. Jur. 2d Vol. 62, Para.

107, Page 682.

Borel was an asbestos insulator, he was a member of

the Asbestos Workers Union, and a. all times knew he

was working with insulation products which contained some

asbestos.

ey)

11

The Fifth Cirenit holds that uo notice of the danger of

asbestosis from exposures to Petitioners’ various products

was given until 1964 and 1966, and such notices were in-

adequate. Tf Borel had notice or been given netice of the

danger of asbestosis, there would be no lability. under

Texas law or under the Restatement of Torts, even though

the product was “unreasonably dangerous” or an unavoid-

able unsafe product. Petitioners assert that as a matter

* Jaw Borel had notice and knowledge of the provisions

of the Texas Workmen's Coiipensation Law; therefore, he

had notice and knewledge of the occupational disease of

asbestosis and its cause.

“Judicial notice” is cognizance of certain facts which

judges and jurors may properly take and act on withont

proot because they already know them. Uwited States v.

International Minerals and Chemical Corporation, 402 U.S.

dos, 20 L. Ed. 2d 178, 91S. Ct. 1697.

Judicial notice is taken of the provisions of the Texas

Workmen's Compensation Statute, All persons are concli-

sively presumed to know the law.*

The Supreme Court of Texas in Stafford Mavutacturina

Cont peiiy Vv. Wichita School Supply Company, et al (1930),

'Statford Manufacturing Company vo Wichita School Supply

Company. Comm. App. Tex.. Opinion adopted by Sup. Ct. Tex.,

23 S.W.2d 695, 697: Indemnity Insurance Company of North

America vo Williams, Tex. Ct. Civ. App. 1934. 69 SAWold od.

d28; Consolidated Casualty Tnsurance Company v. Perkins. Sup.

Ct. Tex. 1955, 279 S.\W.2d 28, 302; Texas Employers Dusnrance

Company vy. Doss, Tex. Ct. Civ App. 1997, 507 S.Wl2d 473, err.

ref. nore. Falls County vo Mires, Ct. Civ. App. Tex. 149, 21+

S.W.2d 491. err. ref. by Sup. C't.; Kasceh v. Anton, Tex. Ct. tix

App. 1935, ST S.W.2d 1097, T1100. Houston & TLCOR. Compa:

v. Johnson, Tex. Comm. App. 1931. 41 S.We2td 14; 25 Tex. Jur.

Yd. Para. 73, Page 114.

12

23 S.W.2d, 695, 697, said: “The rule is too elementary to

require the citation of authority that all persons are con-

clusively presumed to know the law.”

In Kasch v. Anton, Tex. Ct. Civ. App., 1935, 81 S.W.2d

L097, 1100, the Court held: “However violent the presump-

tion may be that every man knows the law, if nevertheless

conclusively prevails, Such presumption applied as much

to Flores or Anton, as it did to Kaseh; and it would be a

strange doctrine of negligence to hold that Kasch was

negligent in failing to tell Flores something that he is in

law conclusively presumed to know.” The claim in the cese

was that Kasch was negligent in failing to instruct his

servant, Flores, of the provisions of the law of the road.

In Indemnity Insurance Company of North America v.

Williams, Ct. Civ. App. 1934. 69 S.W.2d 519, 528, the Court

said: “Courts take judicial notice of public laws of the state

and all facts therein recited.”

In Consolidated Casualty Insurance Company v. Perkins,

Supreme Court of Texas, 1955, 279 S.W.2d 299, 302, the

Court was construing provisicns of the Texas Workmen's

Compensation Act, and said: “The respondent is presumed

to know the law.”

,

In Houston and TCR. Company vy. Johnson, Tex. Comm.

App. 1931, 41 S.W.2d 14, the Court said: “Johnson was

charged with knowledge of the statutory provisions and of

their legal effect.” (The statute referred to freight charges)

In Falls County v. Mires, Ct. Civ. App., Tex. 1949, 218

S.W. 2d 491, err. ref., which means the opinion is approved

by the Supreme Court, it is stated: “Everyone is charge-

able with knowledge of statutory provisions of the law.”

The Fifth Circuit case of Meacham v. Holiey, 103 F. 2d

967, and Beckert v. Holley, 104 F. 2d 1010, cert. denied, 66

13

S. Ct. $16, held: “All persons are conclusively presumed

to know the law.”

In our case, Borel knew he was working with products

which contained asbestos.” (Op., p. 3).

Petitioners assert that as a matter of law Borel had

notice of the provisions of the Texas Workmen's Compen-

sation Act which gave him notice of the occupational

disease of asbestosis, and the knowledge that “asbestosis”

means the characteristic fibrotic condition of the lungs

eaused by the inhalation of asbestos dust. Therefore, Borel

had notice of the danger of asbestosis from exposure to

asbestos dust as far back as 1947 when the Texas Statute

was enacted. The Fifth Circuit discarded this contention,

and held that the manufacturers owed each individual

worker the duty to warn of the possible disease of ashes-

tosis from such exposures to dust from its product.

Clearly, there is a confliet between the Opinion of the

Fifth Cirenit in this ease, and the Texas eases by which

the Court is “Erie bound.”

>*Borel said he had known for years that inhaling asbestos dust

‘was bad for me’ and that it was vexations and bothersome, but

he never realized it could cause any serious or terminal illness.

xxx.” He was a member of the Asbestos Workers Union. He

testified he knew it was dangerous but he never knew how

dangerous.

“Q. In other words, there was some question in your mind as

to whether this was dangerous and whether it was bad for

your health?

A. There was always a question, you just never know how

dangerous it was. | never did know really. If I had known

I would have gotten out of it.

. All right, then you did know it had some degree of danger

but you didn’t know how dangerous it was?

. I knew I was working with insulation.

. Did you know that it contained asbestos?

. Yes, sir, but I didn’t know what asbestos was.”

>bOo> O

14

2. Whether the fai'ure to submit an interrogatory or

a form of verdict whereby the jury could pass upon the de-

fendants’ defense of “assumption of risk” deprived the de-

fendants of their right to a trial by jury as guaranteed by

the Constitution of the United States.

3. Defendants contend that this case was submitted on

special interrogatories and not on a combination of special

interrogatories and a general verdict. Therefore, the opinion

fails to follow rule 49(a) that no finding may be made by

the court on an omitted fact issue. The opinion is therefore

in conflict with the decision of other opinions of the Fifth

Circuit and an opinion of the Fourth Circuit Court of

Appeals.

In this case, pursuant to Rule 49a, F.R.CLP.. the Court

requires the jury to return ONLY a special verdict in the

form of answers to special written interrogatories, This

ix unequiveeally established by the verdict of the jury,

Which consisted solely and alone of answers to five special

interrogatories, The interrogatories and answers which

constituted the verdict are shown on Pages 292-293 of the

Appendix sulnnitted with this application,

Special Tnterrogatory No. 1 inquired as to neeligence

on the part of each defendant proximately causing the

injuries and death of the deceased, Special Inierrogatory

No. 2 submitted as to each defendant the question of eross

neligence, Special titerrogatory No. 3 inquired as to

whether the decensed was guilty of eonth ibutory neghvence

proximately causing his injuries and death. which Was

answered “Yes.” Special Interrogatory No, 4 submitted the

question of whether the defendant breached their warran-

ties proximately causing the death, which were answered

in the affirmative. Special Interrogatory No. 5 inquired as

fo what sum ef money would reasonably compensate the

1

plaintiff for the damages sustained by reason of the death

of her husband. At the conclusion of the interrogatories

is found the following:

“VERDICT OF THE JURY

“We, the jury, return the above answers to the

special interrogatories propounded to us herein as our

verdict in this case,

9/29/71 s Roy L. Jenkins

FOREMAN OF THE JURY"

While the Court generally instructed the jury as to the

defense of voluntary assumption of risk, it is thus evident

that THERE WAS NO WAY for a jury by their verdict

to determine this defense. There was no general form of

verdict submitted to the jury and they returned none, The

Fifth Cireuit stated: “The trial court submitted this case

to the jury on special interrogatories, not ‘on general ver-

dicts accompanied by special interrogatories as to Borel's

contributory negligence,’ as stated in the original opinion

and as stated by defendants’ counsel in objecting to certain

portions of the jury trial.” (Op. Reh, 3828), App. p. 60.

Rule 49(a), F.R.C.P., provides for the submission of a

case to the jury on a special verdict such as was here done,

and further, “If in so doing the court omits any issue of

fact raised by the pleadings or by the evidence, each party

waives his right to a trial by jury on the issue so omitted,

unless before the jury retires he demands its submission

to the jury.” Here the defendants in strict and full com-

pliance with the rule filed a requested interrogatory sub-

mitting the defense, which was presented to the Court and

overruled by the Court, copy of which is shown in the

16

Appendix, Page 161. Going even further, defendants sub-

mitted and ealled to the Court’s attention their Requested

Charge No. 11, Appendix, Page 197, setting forth the

elements of the defense, whieh the Court refused, and

finally defendants objected to the charge “, . . because

there was no interrogatory submitted to the jury whereby

they might answer and find in favor of the defendants

based upon that defense (voluntary assumption of risk),

and even though the jury may find and believe that all of

the elements were established, there is still no way under

the form of verdict as submitted to the jury whereby they

could return a finding in favor of the defendants on that

theory. We have specifically called the Court's attention to.

I believe it was, our Requested Charge No. 11, which set

out elements of that defense and would request the Court

‘TO GIVE THE JURY A SPECIAL INTERROGATORY

SO THAT THEY COULD ANSWER AND MAKE A

FINDING SPECIFICALLY ON THAT DEFENSE, ”

By way of summary, defendants did everything required

by the rules, and more, to preserve their right to a jury

trial on the defense of voluntary assumption of risk.

The Court of Appeals on rehearing recognized the fact

that the case was submitted to the jury on special inter-

rogatories. The appellate court then discusses the GEN-

ERAL instructions in which the trial court instructed the

jury as to the elements of the defense of voluntary assump-

tion of risk, and then overrules defendant’s contentions by

concluding that the general instruction was favorable to

the defendants, holding as follows:

“What more could the defendant want? We con-

sidered the instruction overly favorable to the de-

fendants. Notwithstanding, the jury still found against

17

the defendants, IN HEEECT, therefore, finding that

Borel did not assume the risk.”

Thus, the Court of Appeals deprived the defendants of

their constitutional right to a jury trial, not because the

defense was actually submitted to the jury or determined

by the jury, but on the ground that because the jury

answered the special niterrogatories as to (1) negligence,

(2) gross negligence, (3) contributory negligenes, (4)

breach of warranty, (5) damages, that they were “IN

EFFECT,” also finding against the defendants on the

defense of voluntary assumption of risk, which was not

mentioned or even hinted at, in the interrogatories, the

answers to which alone constituted the verdict in this case.

Rule 49a, F.R.CLP., recognizes the parties’ rights to a trial

by jury and provides that such right can be preserved as to

any fact issue raised by the pleadings or evidence by de-

manding the submission thereof exactly as was done here.

It is settled that when a ease is submitted to the jury on

special interrogatories, as here, the Court should submit

and allow the jury to pass upon all disputed issues of fact

and that when a party, as here, objects to the failure to

submit any disputed issue, that then the Court cannot make

a finding thereon and a new trial must be granted in order

to preserve the parties’ constitutional right of trial by jury.

Scott v. Isbrandsten Co. (4th Cir. 1964), 327 F.2d. 113;

Palmiero v. Spada Distributing Co. (9th Cir. 1954), 217

F.2d. 561; Duke v. Sun Oil Co. (5th Cir. 1963), 320 F.2d.

853. The Court’s holding here is in conflict with these cases.

18

4. Whether the trial court erred in refusing to instruct

the jury that liability could not be imposed if the utility of

the product outweighed the danger involved, and thereby

deprived defendants of a trial by jury on this issue. (App.

p. 188 — Request No. 18).

The Fifth Cirenit said: “The defendants also contend

that the trial court erred in refusing te instruct the jury

that Hability could not be imposed if the utility of the

product outweighed the danger involved. The trial court

did, however, tell the jury that liability could net be im-

posed unless the product was ‘unreasonably dangerous,’

a concept that necessarily tuplies a balancing of the

products utility against the danger”

We submit that defendants were entitled to an instrue-

tion on the defense of the “utility of the product out-

weighing the danger involved.” and the jury could not be

assimmed to have the knowledze that this defense was in-

corporated or implied from the use of the term “unreason-

ably dangerous.”

This holding ts in conflict with the opinion in MeGrath

ve HP atlace Murray Corporation, eee & Ajop. 1Oth Car,

174, C.CLL. Produets Linbility Reports, Pe. P2us23, Para.

7169 (5-15-74), and eases therein cited holding that the fail

ure to submit a principal defense theory in the tn-tructions

ix reversible error, The defense was failure of plaintiff to

use a guard while using the abrasive wheel as a defense to

strict liability,

The defence of the utility of the products containing some

asbestos outweighing the danger was an important one

which the jury was net allowed to consider,

10

5. The ex post facto application of strict liability in tort

under Section 402A, Restatement of Torts, 2nd. Ed.,

(adopted in 1965), and adepted by Texas Courts in 1967, to

occupational exposures to products containing asbestos by

Borel commencing in 1936, is in conflict with opinions of the

Supreme Court of Texas in McKisson v. Sales Affiliates, Inc.

(1967) 416 S.W. 2d 787, and Howle v. Camp Amon Carter

(Tex. 1971), 470 S.W. 2d 629, and Pittsburgh Coca-Cola

Bottling Works v. Ponder, 433 S.W. 2d 546, 548 (Tex. 1969),

and is in viclation of the Constitution of the State of Texas,

Article I, Section 16.

Borel commenced work as an asbestos insulation worker

in 1956 in shipyards, performing original and repair work

in holds of vessels built by contractors for the United States

Government. Borel worked in such shipyards over a pe-

riod of three or four years, working in close quarters and

inhaling large amounts of asbestos dust. The record is silent

as to the names of the manufacturers of the asbestos in-

sulating materials utilized in shipbuilding during the war

vears, Thereafter, Borel worked for numerous independent

insulation contractors in whieh products of one or more

of Petitioners were used from time to time, until the insti-

tution of the instant suit.

The State of Texas had in fuil foree and etfect from 1947

to the present tine an occupational disease statute under

workmen's compensation providing for benefits caused by

asbestosis contracted on the job; nevertheless, the Fifth

Cirenit held Petitioners, who were manufacturers of in-

sulation products and had no control over working condi-

tions of Borel and workers similarly employed, strictly

liable in tort under Section 402A of the Restatement of the

Law of Torts (2nd Ed.) which was not adopted by Restate-

inent until 1965, and which rule of strict liability was not

20

adopted in the State of Texas until 1967 as to products

other than food. WeWissou v. Sales Affiliates, Tne., AAG SW,

Dd TST (Tex. 1967). No Texas Court has held the doctrine

enunciated in WeWisson v. Sales Afiiliates, Ine., supra, retro-

actively applicable to events and acts occurring before the

date of the decision of the Texas Supreme Court in June,

1967,

Prior to the MeNisson case, the Texas Supreme Court

expressly refused to extend the doctrine of strict Hability

to manufacturers of non-food products. Cruz ve bisa Chew-

ical Company, 399 SW, 2d 944 (Tex. Civ. App. — Corpus

Christ: 1966, writ red une.) : Brown v. Howard, 289 SW.

YL 792 (Tex. Civ. App.—San Antonio 1955, writ) ref"d

RT .2: },

In 1967, the Supreme Court of Texas abruptly changed

the direction of the law in Texas when it adopted the rule

of strict liability in the WeNisson ease, supra. In Pittsburg

Coca-Cola Bottling Works ve Ponder, 445 SW. 2d 546,

AS (Tex. 1969), the Court gives a condensed history of the

evolution of this phase of the law when it said:

“Our approach to use of the rule for imposing lia-

lility on sellers of products has been gradualistie and

marked with caution, Some twenty-seven years ago,

we adopted the rile as a means of fixing lability on

manufacturers and packagers of food products for

human consumption. Decker & Sons v. Capps, 139 Tex.

609, 164 SW. 2d S28, 142 A.L.R. 1479 (19423, and on

retain purveyers thereot, Griggs Canning Co, v. Josey,

139 Tex. 625, 164 SW, 2d 855, 142 ALR. 1424 (1942);

but a decade later, we questioned the wisdom of apply-

ing the rule to retailers of food products, canned or

packaged by others, and we refused to apply it to

wholesalers of such products. Bowman Biscuit Co. of

Texas v. Hines, 151 Tex. 370, 251 S.W. 2d 153 (1952).

Then, in 1956, with the question squarely presented,

21

we refused to grant a writ in Brown v. Howard, 285

SW. 2d 752 (Tex. Civ. App. — San Antonio, 1956, writ

it nre.), and thus refused to apply the rule to a

nanufacturer of a spray causing harm when used on

the plaintiffs cattle.

“Tn 167, we finally vielded to the irrefutable logic

that the rule of striet liability is the only practical

vehicle for proteeting the public against harm so often

encountered by innocent users and consumers of de-

fective preducts. We abruptly changed direction, In

MeKisson v. Sales Affiliates, Inc... 416 SW. 2d 7S7

(Tex, Sup. 1967), we applied the rule against a dis-

tributor of a permanent wave lotion which proved

harmful when applied to a woman's hair and scalp.

In that case, we committed the court to the rule of

strict liability expressed in Section 402A of The Amer-

ican Law Tustitute’s Restatement of the Law of Torts

(2d Ed.) as applicable to all persons engaged in the

business of selling who sell a product in a defective

condition which renders it unreasonably dangerous to

a user or consumer or to his property. The necessary

effect of VMeNisson was to disapprove prior coulrary

crpressions of the la as announced th Bowman Bise “uit

Co. v. Hines, supra, and Brown v. Howard, supra.”

(Mimphasis added).

In MeNisson, supra, the strict lability doctrine was

applied to the parties before the Court, but the Court did

not determine whether the new rule it adopted would oper-

ate retroactively or only prospectively as to other cases.

The Texas Supreme Court recently recognized that prob-

able reliance by potential defendants warranted prospec-

tive application of the court-made rule abolishing chari-

table immunity rather than giving retroactive effect to such

opinion, Watkins v. Southerest Baptist Church, 399 SW.

2d 530 (Tex. 1966), Towle v. Camp Amon Carter, 470 SW,

2d 629, 1971.

In Wothiues ve. Southerest Baptist Church, 399 SWoed S20,

039, the Supreme Court of Texas sustained the court-made

rule of charitable immunity but gave notice that from and

after the date of the opinion “that the doetrine of charita-

ble iamunity will not be recognized in cases hereafter

arising.”

In Howley. Cap Amon Carter, 470 SW.2d. 629 (1971),

the Texas Supreme Court ina case involving the charitable

inumunity doetrine, said:

“The several opinions in Watkins gave ample notice

that the doctrine of charitable immunity would be re-

considered and might well be abrogated. If is now com-

pletely abrogated with respect to causes of action aris-

ing from events occwrriig atier the motion for rehear-

ing in Wathivs was overruled on March 9, 1966."

Thus, the Supreme Court of Texas recognized the proba-

ble reliance by potential defendants of the defence of chari-

table immunity and in abolishing the court-anade doctrine

made its ruling applicable prospectively. Numerous other

Courts follow the prospective application of court-made

law.°

It ix submitted that the Federal Courts should ascertain

and follow the position that the Texas Supreme Court would

® Abernathy v. Sisters of St. Mary's. 447 S,W.2d 599 (Mo. 1969),

(abolishing the doctrine of charitable immunity); Myers. v.

Drozda, 150) Neb. 183. 141 N.W.2d 8520 (1956); Darling v.

Charleston Community Memorial Hospital. 33 TI 2d $26, 211

N.B.2d 2535 (1965) cert. dented 383 U.S. 946, 86 S. Ct. 1204.

16 L. Ed. 2d 209 (1966); Thoen v. Hatton, 287 Minn. 545, 177

NoW.2d 815 (1970), Coverrtling the rule that the wife had no

vause of action for loss of husband's consortium, and holding

that such decision would operate prospectively); Spanel v.

Moundsview School District, P64 Minn. 279, 118 NOW 2d 795

(1962) (abolishing the doctrine of sovereign immunity for school

districts prospectively); Holytz v. City of Milwaukee, 17 Wis.

2d 26, 115 N.W,2d 618 (1962), (abolishing the doctrine of gov-

ernmental immunity prospectively),

oo

probably take on the retroactive application of the rule of

strict liability in tort adopted in WeWissou, Since the Texas

Supreme Court has given the condensed history of the evo-

lution of strict ability in Pittsburg Coca-Cola v. Pouder

and refused to apply the abolition of the rule of charitable

immunity. retroactively, it is evident that the Texas

Supreme Court would not apply the rile of strict lability

in tort to non-food products ret reactively to T86, The Ped-

eral Courts should attempt to decide the matter as a Texas

Court would — “in effect, sitting as a State Court.” Cow-

missiower Vv. Estate vo! Bosch, 387 U.S. 456, 465, ST S. Ct.

1776, W7s2-85, 1s LL. Md. 2d S86, 894 (1967). bu determining

the question, the Federal Courts should take into geeornt

all the authorities whieh would be persuasive to the State

Court. Roaiushu vy. Richardsou-Merriih, Lie. S78 FL Sa. 851

(2nd Cir. 1967).

Another inpelling reason why this rule bw the Texas

Supreme Court in MeAdssow in W967 should not be applied

retronetively is Article 1, Seetion 16 of the Terus Coustitu-

Pit:

“See, 16. No dill of mitaineder, eX rst Peto law,

retroactive law, or anv daw inatring the oblicstion

of contracts, shall be mindec” Vernon's Pexssus Consti-

tution, Volmme I. Page S71. See Commentary. Page

ayers) FT

rh iret

The Texas Constitution woes

further than the United States

Constitution for the former is not ecomntioed to forbidding ex post

faeto laws. law. retreaetive aid prertnant jewishation, beat it also davs

abanon ay retroactive law. In prohibiting retroaetive laws. the

Texas Constitution seeks to safeenard rights not guaranteed by

other constitutional provisions such as the impairment of the

obligation of contracts and die process of taw chiuses. Melinger

v. City of Houston, Gs Tht. 3 SW. 2a Css]

“A retrouetive law is one meant te act on things that are past.

As such. a statute is retroactive whieh takes away or tupairs

vested rights acquired ander existing laws, or creates new obli-

24

‘\

Under principles governing the retroactive application

of an overruled decision, it seems clear that the Texas

Supreme Court, as well as the majority of jurisdictions in

other States, would not hold the Meissen strict liability

doctrine retreactively applicable, and particularly with

respect to events occurring before June 7, 1967.

In sununary, the opinion of the Fifth Cireuit in the case

at bar holds that an emptoyee may recover from manu-

facturers of asbestos products for an ocenpational disease

coutracted from exposures beginning in 1956, even though

up to 1967 he had no cause of action cognizable under

Texas law against the manufaeturers. Such decision is

contrary to Texas law. Further, recovery is allowed

under the strict liability in tort despite the fact that the

applicable Workmen's Compensation Statutes of Texas

erant a remedy for becoming incapacitated as a result of

the occupational disease.

gations, imposes new duties, cr adopts a new disability in respect

to transactions or considerations already past, and which affects

acts or rights aceruing before it came into force. Turbeville v.

Gowdy, Civ. App. 272 S.W. 559 (1925).”

CONCLUSION

For these reasons a Writ of Certiorari should issue te

review the judgment and opinion of the Fifth Cirenit.

Respectfully submitted;

George A. WELLER

P.O. Box 350

Beaumont, Texas 77704

Attorney for Petitioner,

Fibreboard Corporation

Joun G. Tucker

Jeaumont Savings Building

Beaumont, Texas 77701

Attorney for Petitioner,

Ruberoid Company

Joun G. Trucker

Gorpon R. Pare

Jounx Pike Powers IV

San Jacinto Building

Beaumont, Texas 77701

Attorneys for Petitioner,

Johns-Manvrille Products

Corporation

Grorcre FE. Duxecan

Petroleum Building

Beaumont, Texas 77701

Attorney for Petitioner,

Pittshurgh Corning

Corporation

26

W. XN. Arnon, Jr.

Bank of the Southwest

Building

Houston, Texas 77002

Attorney for Petitioners,

Armstrong Cork Company and

Philip Carey Corporation

Grorce A. WELLER

27

In THe

SUPREME COURT OF THE UNITED STATES

Ocroper Term, 1974

ee

Fisnesoary Papen Propvers Corporation, ET AL.

Petitioners,

Vv.

CLARENCE Boren,

Respondent,

CERTIFICATE OF ee VICE

I hereby certify that on the 2&0 My of July, 1974, three

copies of the Petition for Writ of Certiorari were mailed

by Certified Mail, postage wurepaid, to the Honorable

Marlin Thompson, Stephenson & Thompson, Attorneys,

Stephenson Building, Orange, Texas, 77630, counsel for

Respondent, and three (3) copies were mailed by Certified

Mail, postage prepaid, to the Honorable George BE. Murph,

San Jacinto Building, Beaumont, Texas, counsel for In-

tervenor. T further certify that all parties required to be

served have been served,

P. 0. Box 350

Beaumont. Texas 77704

Counsel for Petitioners